Land Use Perspectives

We learned in early May at the Annual Town Meeting that the Kinder-Morgan Corporation plans to ram a three-foot interstate gas pipeline through the center of Pepperell on its way from New York state to Dracut. This corporation has billions of dollars in the bank and seems to have most politicians of both parties in its (deep) pockets, including the governor.

With its 100-foot swath of destruction through the town, the pipeline may well have the greatest impact on the town of any single development since settlement in the 18th century. If it comes to pass will property values and tax revenues plunge, leaving the landscape permanently scarred? If so, the population will rapidly decline, making future commercial development increasingly unlikely. Stay tuned.

At the annual town meeting on May 5 and 6 the town took decisive action on the attempt to create a new strip zone by citizen’s petition. The applicants, led by Dick Conway and George Clark, sought to include their properties on Hollis Street in an expanded commercial district that would extend clear to the Rotary.

Despite the fact that the Planning Board hearing on the article in March had encountered strong opposition from many of the property owners within the proposed district who had no desire to live in a commercial district, the applicants seemed taken aback when the same irate folks showed at the ATM. It was clear that they had no problem with existing commercial properties such as Clark, Conway, the daycare center, and Matley’s being rezoned, but they had major objections to bringing the congestion, noise, litter, and traffic that might accompany extending the commercial district into their own residential neighborhood. The question was almost put to a vote on Monday night, which would have resulted its defeat (zoning articles need approval by 2/3s of those voting).

The applicants should have anticipated this opposition and realized that the town would never put through a zoning change over the resistance of affected property owners, and have prepared an amendment to reduce the size of the proposed district. But they didn’t. They were saved from certain defeat by the moderator, who instead of taking a vote invited amendments from the floor. Had the opposition been better organized or a little more sophisticated, they would have simply called for a vote and defeated the article. Instead, they took the bait—“I want to amend by taking my property out of the district.” Someone else suggested adjourning so that more property owners could be consulted. And the meeting was adjourned to the following night.

When the meeting had resumed, someone apparently had convinced the applicants to introduce their own amendment, which now reduced the expansion to the five allegedly commercial properties. This was adopted and passed. Although any expansion of the commercial district at a time when demand for retail and office space is at an all-time low (at least since the 1930s) is unwise, some good things have come out of this. For many years it has been an article of faith by Town Counsel, the Planning Board, and the Town Meeting that the town must avoid illegal “spot zoning,” which has been defined to mean non-continuous districts of almost any size. Commercial districts need to be expanded by accretions of existing districts, that is, ever-expanding commercial strips, or so we were told.

But not this time. By adopting these changes the town created three, small, disconnected commercial districts, rather than a linear strip. Is this bad? The residents of Hollis Street didn’t think so. They felt that just because part of Hollis Street is commercial, there’s no need for their entire block to go the same way, even if they have commercial neighbors. For years we’ve been hearing the argument that if there’s commercial activity near a residential district, then it makes sense to rezone the entire neighborhood commercial. Does it?

At a time when there’s little demand for commercial space too rapid expansion of the commercial district risks spreading existing over a larger area without any overall improvement in commercial activity. This sloppy sprawl has a name—blight. Property owners wonder whether they should improve or maintain buildings that might be soon torn down for commercial use.

Still, it would have been better had this article been defeated, since it expands the existing “free-fire” commercial zone, which provides very little protection (nearly any commercial use is allowed, without architectural review or adequate sign control). The planning board has charged a citizens committee with developing new guidelines for a new, more neighborhood-friendly, limited commercial zone, and this should have waited until this had been completed.

Four of the five properties rezoned commercial are already being used for clearly commercial purposes (the day care center is allowed under current zoning, but it is housed in a former bait and tackle shop). But the fifth, the assisted living home, was not. There is little commercial in this property’s appearance. The land is currently zoned for this use, and was already an assisted living facility when the present owners bought it several years ago. Any gain that the owners would realize as a result of this rezoning would be a windfall profit, since the existing zoning was reflected in their purchase price. And the town now faces the very real possibility that this pleasant-appearing structure could be replaced by a fast-food restaurant, strip mall, bowling alley, tire dealership, or other use inappropriate for land adjacent to a town field or school.

For years businessmen and women have been telling us that the town needs more commercially zoned land, and that the present supply is inadequate. Well, their bluff has been called. Let’s see what goes into this new commercial district, and whether or not the town can really attract new businesses.

Some folks regret that Pepperell has largely avoided the commercial strips that characterize many New England towns such as Dracut, Billerica, and Salem, NH. This is not accidental: Pepperell’s zoning code has protected us from unregulated commercial development by confining new commercial development to a relatively small area of town. It’s not that our zoning law does a very good job of preserving our rural ambiance, but at least we’ve prevented expanding this zone.

On Monday night, March 24, a well-attended Planning Board hearing at the Community Center considered a citizens’ petition to further the expansion of the Commercial District up Hollis Street from the rotary to Clark’s Auto Body and the former Conway Chevrolet property. Not surprisingly, the article is sponsored by Messrs. Clark and Conway, who hope to boost their revenues when they sell their properties. The article will go before the voters at the Annual Town Meeting in May.

Some fourteen properties are involved. At the eastern end of the proposed district are two unquestionably pre-existing commercial properties, the former Conway Chevrolet (owned Dick Conway, who although has never lived here has been quite active the Pepperell business community), and George Clark’s auto body. Next to Clark’s is a day care center which is already permitted under current zoning.

There are only two other commercial properties in the district. Matley’s Plumbing is a very special case, for it combines a preexisting building with a church. Matley built the church in the mid-1980s to house an expansion of his shop, without clearing it first with the town. Whoops! Lucky for him, he found the church, which under the Dover Amendment is a use exempt from zoning. I believe the main building also includes some apartments. (Pepperell zoning law does not allow more than one primary use per lot. Even if rezoned commercial, this property will probably still be non conforming.)

Finally, there’s an assisted living facility adjacent to the driveway to the Varnum Brook Elementary School, which is currently a permitted use. The owners now regard their property as commercial, even though there are no outward signs of this and it is permitted under current zoning. All of the other nine properties in the proposed district (and every lot is occupied) are single or two-family houses. No businesses are evident.

The meeting was surprisingly civil, with the audience more or less evenly divided between proponents and opponents, a division that doesn’t bode well for its passage by a two-thirds vote. The proponents argued that, hey, the proposed district already is commercial anyway, so why don’t we just recognize reality and make things easier for everyone? And the owners are not getting any younger, and they should be able to get the money they deserve when they sell their properties.

The opponents, nearly all of whom live in the affected neighborhood, pointed out the incongruity of commercial activity so close to schools and playgrounds, the unwelcome prospect of increased traffic, noise, and all-night lighting in their neighborhoods, and the fact that the town’s single unlimited commercial zone allows nearly any activity, including fast-food restaurants, all-night convenience stores, and bars. I noted that encouraging commercial development at a five-way intersection of roads that the town, not the state, maintains is crazy.

All this, of course was inspired by last year’s rezoning and subsequent sale of the Bozicas property on Main Street last year at twice its original asking price to the deep-pocketed Southern New England Medical Center, who will shortly be building a major medical center on the 3-acre Main Street property, across the street from Donelans. That change was brought about by citizen’s petition and approved by a vote at town meeting.

Here’s another case of history repeating itself. In 1989 a group of businessmen sought a much larger expansion of the commercial district, from the Rotary up Hollis Street and Nashua Road clear to Lomar Park! This strip zoning proposal caused a political furor that led to my election to the Planning Board and Scott Blackburn (now our Moderator) to the Board of Selectman. At a raucous town meeting the proposal failed on a tie vote (far short of the two-thirds vote it needed).

Now part of the proposal has resurfaced. The driving force behind this new attempt (beside the obvious desire to increase property values) is the alleged need to expand the commercial district, which we’re told needs to be expanded. It has been an article of faith of many in the business community, as well as town officials in their camp, that a shortage of commercial space is holding back the commercial expansion the town so desperately needs to pay its bills.

Despite why you often here, there is no evidence of business being held back by a shortage of commercial space. Quite the contrary. Downtown is littered with “Available” and “For Lease” signs, whether you want space for a store or office, big or small. Clearly, the market is telling us something if we care to listen.

The danger in all this, of course, is whenever a town zones too much property commercial it tends to spread commercial activity over a larger area without increasing the overall volume of commercial sales. Residential properties start to deteriorate, as owners are reluctant to sink money into properties they may be tearing down in the future. Existing business districts, such as Railroad Square, decay. The town looks awful, increasing numbers of residents are affected, and property values decline, wiping out any tax gains.

The applicants seem to have been taken aback by the neighborhood opposition, and when besieged with questions as to why they didn’t confine their proposal to their own properties (Conway and Clark) they muttered something about “spot zoning.” This prompted town attorney Ned Richardson to launch a ten-minute discourse on spot zoning, the gist of which was (we think) that courts tend to defer to the judgment of town meetings. There was talk at the hearing to amend the proposal to exclude all but the easternmost portion (Clark, Conway, and the day care), which has the least opposition since the present use of these three lots is clearly non-residential.

The problem is that even confining rezoning to these three lots would expand the existing free-fire commercial zone and permit almost any conceivable use for the land, from multi-family housing to fast-food restaurant to the most likely outcome—especially for the Conway property—a strip mall/convenience store. Unfortunately, the tenants for this would almost certainly come from businesses currently on Main Street or would replace competing businesses now there. And without architectural review and signage controls the results might be little improvement over the present appearance.

Be sure to attend this year’s annual town meeting on Monday, May 5, 2014. Strip zoning should have no place in our residential neighborhoods, especially one so close to our schools.

So what’s wrong with Pepperell’s current commercial zoning? Plenty. Unlike many other towns, Pepperell has only one commercial district (but no fewer than 5 residential districts!). The one-size-fits-all approach seldom works in zoning, and this is no exception. Among the many things that are wrong the following are the most grievous:

Multi-family housing: One basic principal of zoning is that commercial uses, especially busy ones like shopping centers, fast-food-restaurants, and movie theaters, should be kept out of residential areas. Unfortunately, the Pepperell Zoning Bylaws allows apartments anywhere in the commercial districts, and then permits even the busiest, noisiest uses next door. When Pepperell’s current zoning was adopted 40 years ago apartments were thought of as commercial uses because they were operated as businesses (real estate property management). Remember that in the early 1970s there were such things as condominiums: all multi-family housing was rental (unless one of the apartments was occupied by the owner). Because of low demand for commercial real estate in Pepperell, much of our commercial zone is taken up with housing. The next time someone says to you that we need to expand the commercial zone, ask them why this: if there really is a shortage of commercial real estate, why are there so many apartments in the commercial zone? Why aren’t some of these being converted to stores and offices?

Anything goes: Virtually any commercial (and most industrial uses) are allowed in our commercial district. There are no restrictions on the size of the buildings, except for parking requirements. Among the permitted uses are big box stores, car washes, tire dealers, supermarkets, hospitals, hotels, banks, fast food restaurants, body shops, nursing homes, funeral homes, miniature golf courses, and flea markets. Take a drive down Webster Highway or Amherst Street in Nashua. Just about anything you see there can be built in our commercial zone. How many of these do we really want in our town? Do we really want Pepperell to look like, say, Dracut, Billerica, or Salem, NH? Some people wish it did.

Inadequate review by town: Although a site plan permit is required for larger projects, there is no mandatory architectural review by any town board. The only architectural guidelines are in section 9446 which requires applicants to “minimize unreasonable departure from the character, materials, and scale of buildings in the vicinity, as viewed from public ways and places.” Sounds good, but ultimately meaningless, since “unreasonable, ” “materials” (visible?) and “vicinity” are undefined. Does “character” refer to architectural style or something more subjective?

Traffic: Section 9462 requires applicants to “maximize pedestrian and vehicular safety on the site, egressing from it, and in the immediate vicinity.” Unfortunately, safety, isn’t the same thing as traffic flow. When I was on the planning board in the 1990s we approved the drive-through window for the Duncan Doughnuts. The result was serious traffic jams on Main Street on Saturday mornings from customers backing up at the window. Fortunately for the town, the owner was willing to work with us to help solve the problem. Someone less public-spirited, however, could have told us to go to hell, since the congestion, although a major headache to drivers, wasn’t really dangerous. Stopped traffic doesn’t cause much accidents. Therefore, an applicant could refuse to undertake traffic mitigation improvements (say, an expensive traffic light) on the grounds that the light isn’t needed for safety, since the traffic jams caused by his business actually reduce the severity of accidents (by lowering speed!). Many judges would undoubtedly agree.

Not everything is wrong with Pepperell’s commercial zoning. When the predecessor of Pepperell’s current zoning map was drawn up in 1974, the commercial district was confined to the existing business areas, namely Railroad Square (the railroad still ran through it in those days) and Babbitasset Village, (Main Street between the river and the railroad depot), as well as the east side of the Rotary, which featured a strip mall (Lordens) and an insurance office.

After World War II, lots of suburban towns created overly large business districts. These so-called strip zones encompassed long stretches of state highways, in most cases far more commercial land than the town would need in the next fifty years. The result was the ugly commercial strips we’re all so familiar with. Pepperell, in its wisdom, refused to follow this course, and so lower Main Street (and not even all of that) is the only commercial street in town. That’s good. Unlike Dracut, Billerica, and many other places, Pepperell isn’t plagued with miles of tacky commercial strips all over town.

Unfortunately, Main Street isn’t a state-maintained highway. We have only one of these in town, Rte. 119. In their admirable zeal to confine Pepperell’s business district to the existing down town and its adjacent residential districts, the town mothers and fathers in 1974 failed to zone even one foot of Rte. 119 as commercial. This left no room at all for larger scale commercial projects, such as shopping centers. Most towns in our regions (Groton and Townsend, for example) located their shopping centers on a state-maintained highway (in this case, Rte. 119), on the edges of town. We could have done this, too (few lived on Rte. 119 forty years ago) but we didn’t. Now it’s probably too late to rezone this road.

Main Street 1986 (site of Dolce’s)

Another problem: although (contrary to what you sometimes hear) Pepperell has a commercial district large enough to meet the town’s needs, it’s in the wrong place. The entire district is already occupied by buildings, mostly historic nineteenth-century houses on small, shallow lots, that must be demolished to construct parking lots or new buildings, such as banks, pharmacies, or car washes. A lot of nice buildings have already been destroyed here, with more to come. An attempt to establish an historic district in the commercial zone, which could have provided some guidance to this process, was soundly defeated in 1987.

When I was a member of the Planning Board back in the 1990s, it was common for citizens to seek appointments to talk to the board.I remember one night when the late Conrad Eaton appeared with a long litany of complaints in hand.After he finished reading us his list of everything we were doing wrong, he looked up at us and said, “You know, I see now that this board has changed since the last time I was here, and I don’t know most of you.So what I’ve said might not apply. Just disregard my comments.”And before we could say anything in reply, he turned around and left!

But on one rare occasion, twenty years ago or so, we had a visitor who was truly enlightening. Mr. Austin Mason, who lived on Prescott Street, had served on the Pepperell Industrial Development Commission.He explained to us that before retirement he had served as a location executive for a Fortune 500 corporation, siting facilities all over the country.His intention, he explained to us, was to use his experience to show us how he viewed Pepperell’s commercial and industrial prospects.

I can still remember the gist of what he told us. First, the possibility of a major employer locating in Pepperell was slim.Why? It turns out that the single most important factor in locating a plant or office was the distance to the nearest highway interchange.With no limited access expressway running through Pepperell or any adjacent town, we were simply too far away.DEC located a major facility in Littleton, right off Route 495; it never seriously considered Pepperell.Moreover, our proximity to a state without an income tax further discouraged executives from locating offices on this side of the border. Similarly, the absence of a sales tax kept big retailers from building in Massachusetts adjacent to New Hampshire.

However we changed our zoning, Mr. Mason concluded, Pepperell will never be able to transfer a significant share of our tax bill from residential to commercial or industrial property.

Austin Mason died a number of years ago, but time has proved him right. One of our leading realtors once told me that he had been unsuccessful in trying to help a client buy a franchise to open up a business in Pepperell.The first question the companies always asked him was how far the town was from the nearest Interstate.It was always too far. And to this day, no Fortune 500 or 1000 corporation has located a facility here, aside from a drugstore and a doughnut shop (years ago, long before my time, the town had an A&P supermarket).Nor is one likely to appear.

Still, some of our town fathers continue to tell us that the town can build its way out of its present financial straits by expanding our commercial district and enlarging our tax base. Too bad they weren’t able to talk to Mr. Mason.

About the K Report

Published by former Planning Board member Ron Karr, The K Report is intended to provoke discussion of land use issues in and around Pepperell, Massachusetts, including zoning, subdivision control, smart growth, commercial development, agriculture, historic preservation, outdoor recreation, water, and open space. Your comments are welcome!